Vermont § 1111 - Permitted use of the right-of-way relocation or adjustment orders

§ 1111. Permitted use of the right-of-way relocation or adjustment orders

• (a) Permits; relocation or adjustment orders. (1) Permits must be obtained by anyone or any corporation wishing to use as described
  in this section any part of the highway right-of-way on either the State or town system.
  Notwithstanding any other statutory requirement, a permit shall be required for any
  use of any highway right-of-way, consistent with the provisions of this section. In
  issuing a permit under this section for a use of a State highway right-of-way, the
  Secretary may require a transportation impact fee in accordance with 10 V.S.A. chapter
  151, subchapter 5. Except for this transportation impact fee authority of the Secretary,
  the authority given to the Board, the Secretary, and the Attorney General under this
  section shall also apply to the legislative bodies of towns or their designees. (2) Except in emergencies, the Agency or the municipality shall seek input and consider
  input received from affected utilities before issuing a utility relocation or adjustment
  order. In specifying the times for utility relocation or adjustment work, the Agency
  or the municipality shall allocate to each a reasonable time for its role in the relocation
  or adjustment work after taking into account: (A) the season of the year; and (B) the respective duties and responsibilities of the pole or conduit owner and the involved
  utilities, including the need to install, transfer, or retire individual components
  in a specific sequence. (3) When the Agency or a municipality issues a utility relocation or adjustment order
  in accordance with law in connection with highway maintenance or construction activities,
  and a utility fails to move or adjust its line or other facility within the time specified
  in the order, that utility shall be liable to the State or to the municipality for
  damages that the State or the municipality is required to pay a contractor for delay
  caused by the failure. However, a utility shall not be liable for such damages if
  its failure to move or adjust the line or facility is for reasons beyond its control,
  including: emergency restoration activities; inclement weather; timing restrictions
  imposed by law or permits; terms of collective bargaining agreements; or the failure
  of another utility to complete its assigned responsibilities for the installation,
  transfer, or retirement of its facilities. If the Agency or the selectboard cannot
  agree with a utility as to whether the utility is liable or as to the amount of damages
  under this subdivision (a)(3), the Agency or selectboard may bring an action in accordance
  with subsection (h) of this section. (b) Driveway entrances; highway grades; drainage. It shall be unlawful to develop, construct, regrade, or resurface any driveway, entrance,
  or approach; or build a fence or building; or deposit material of any kind within;
  or to in any way affect the grade of a highway right-of-way; or obstruct a ditch,
  culvert, or drainage course that drains a highway; or fill or grade the land adjacent
  to a highway so as to divert the flow of water onto the highway right-of-way without
  a written permit from the Agency, in the case of State highways, or the legislative
  body or designee of a municipality, in the case of town highways. As a condition of
  any such permit, compliance with all local ordinances and regulations relating to
  highways and land use shall be required. The Agency or legislative body, within their
  respective jurisdictions, may make such rules to carry out the provisions of this
  section as will adequately protect and promote the safety of the traveling public,
  maintain reasonable levels of service on the existing highway system, and protect
  the public investment in the existing highway infrastructure, but shall in no case
  deny reasonable entrance and exit to or from property abutting the highways, except
  on limited access highways, using safety, maintenance of reasonable levels of service
  on the existing highways, and protection of the public investment in the existing
  highway infrastructure as the test for reasonableness, and except as necessary to
  be consistent with the planning goals of 24 V.S.A. § 4302 and to be compatible with any regional plan, State agency plan, or approved municipal
  plan. However, in any case involving an access permit for a development contributing
  75 or more peak hour trips to State highways or class 1 town highways, the permit
  may include reasonable conditions and requirements to protect service levels on such
  highways. (c) Installing pipes and wires in highway. (1) It shall be unlawful to dig up or excavate a trench in a public highway for the purpose
  of installing pipes or wires without a written permit from the Agency in the case
  of State highways and the selectboard for town highways. The permit shall include
  any conditions imposed by the issuing party. All inspection of excavation and backfilling
  shall be done under the supervision of an agent of either the town or State as the
  case may be. Failure of any person, corporation, or municipality to perform the work
  or to restore the highways in a satisfactory and timely manner to the Agency or the
  town may result in either the Agency or the town completing the work at the expense
  of the permit holder; provided, however, the Agency or town shall give timely notice
  to the permit holder of any defects, and the permit holder, upon receipt of notice,
  shall have a reasonable time in which to repair the defects. The Agency or the selectboard
  may recover reasonable expenses incurred in this manner in a civil action in the name
  of the State or town with costs. (2) These provisions shall not apply to cities and shall not prevent a person, corporation,
  or municipality from excavating to make emergency repairs to a break in a pipe or
  a short in a wire, but in all cases all work shall be completed to the satisfaction
  of the Agency or the town. Notice shall be given to the appropriate persons as expeditiously
  as possible after discovery of the problem. (d) Use by private sewer or water lines. The Agency may issue permits allowing the use of highway rights-of-way for private
  sewer or water lines if, following notice and hearing, the Board certifies to the
  Agency that the requested use will serve the needs of the public. In its certificate,
  the Board may attach conditions as are required, including the following: (1) the installation of sewer or water lines shall conform with plans and specifications
  approved by the Agency and shall be relocated at no cost to the State whenever the
  right-of-way is needed for highway purposes; (2) reimbursement of the Agency by the permit applicant for the actual costs of the review,
  inspection, and engineering services provided by the Agency for these installations;
  and (3) reimbursement of the Agency by the permit applicant for the cost of assigning an inspector
  to the project during construction. (e) Project inspectors; highway access plan. The Agency may assign an inspector to the project during construction at the applicant’s
  expense. Any application to the Agency for a drive or access permit by reason of any
  development subject to the provisions of this section shall include a proposed highway
  access plan for the entire tract of land. The Agency shall impose reasonable conditions
  to reduce the number of accesses that will be required for the tract of land. These
  conditions may include one or more of the following: a required setback of any construction
  or improvements from the highway to permit the construction of frontage road or roads;
  acceleration and deceleration lanes; or other areas for off-highway control and management
  of vehicles and may require reimbursement for any costs to the State for the installation
  of traffic control devices or road improvements reasonably required because of the
  development, and may permit or require integration of the access and on-site traffic
  control facilities and connection of frontage roads between contiguous tracts of land
  as development is occurring or may occur along the highway. (f) Revoking access; frontage road. The Agency, in the case of State highways, or the selectboard, in the case of town
  highways, may, as development occurs on land abutting the highway, provide as a condition
  of any permit for the elimination of access previously permitted and require the construction
  of a common frontage road or other access improvements that may serve more than one
  property or lot. (g) Permit suspension. In addition to any other enforcement powers that may be provided for by law, the Secretary
  or his or her designated representative, on behalf of the Agency, or the legislative
  body or designee, on behalf of a municipality, may suspend any permit under this section
  until compliance is obtained. If there is continued use or activity after suspension,
  the Secretary, on behalf of the Agency, or the legislative body, on behalf of a municipality,
  may physically close the driveway or access point if, in the opinion of the Secretary
  or the legislative body, the safety of highway users is or may be affected. (h) Restraining prohibited acts; damages. Whenever the Secretary believes that any person is in violation of the provisions
  of this chapter, he or she may also bring an action in the name of the Agency in a
  court of competent jurisdiction against the person to collect civil penalties as provided
  for in subsection (j) of this section, for damages, and to restrain by temporary or
  permanent injunction the continuation or repetition of the violation. The selectboard
  shall have the same authority for town highways. The court may issue temporary or
  permanent injunctions without bond, and any other relief as may be necessary and appropriate
  for abatement of any violation. An action, injunction, or other enforcement proceeding
  by a municipality relating to the failure to obtain or comply with the terms and conditions
  of any permit issued by a municipality pursuant to this section shall be instituted
  within 15 years from the date the alleged violation first occurred and not thereafter.
  The burden of proving the date on which the alleged violation first occurred shall
  be on the person against whom the enforcement action is instituted. (i) Assurance of discontinuance. The Secretary or the selectboard may accept an assurance of discontinuance of any
  violation of the terms of this chapter, including when applicable schedules of abatement
  for a violation. Any assurance of discontinuance shall be in writing and shall be
  filed with the Attorney General, the court having jurisdiction over the subject matter,
  and the town clerk of the town in which the violation occurred for recording in the
  land records. The Attorney General, within ten days of receipt of the assurance,
  if he or she objects to the terms, may petition the Board for a hearing of the violation
  in the manner prescribed by law. The Board shall hold a hearing on the petition within
  30 days of its receipt and shall issue an appropriate order within 15 days thereafter.
  Evidence of violation of an assurance shall be prima facie proof of the violation
  as cited in the assurance. Prior to institution of any action or proceeding under
  this subsection, the Secretary, whenever he or she believes any person to be or to
  have been in violation, may issue a notice of violation setting forth the nature of
  the violation, the corrective action necessary to abate the violation, and notice
  of intention to institute an action or proceeding against the person responsible for
  the violation. In this event, the Secretary shall within 30 days provide the person
  with notice, an opportunity to be heard, and an opportunity to settle the matter before
  instituting an action or proceeding as provided for in this subsection. (j) Civil penalty. Any person who violates the provisions of this chapter or the terms of an order issued
  by a court under this chapter shall forfeit and pay to the State a civil penalty of
  not less than $100.00 and not more than $10,000.00 for each violation; provided, however,
  where violation of an order is of a continuing nature, each day during which the violation
  continues after the date fixed by the court for the correction or termination of the
  violation shall constitute an additional separate and distinct offense, except during
  the time an appeal from the order may be taken or is pending. For the purposes of
  this subsection, the court issuing the injunction on petition of the Secretary shall
  retain jurisdiction for purposes of awarding the civil penalty. (k) Recording of deeds. No deed purporting to subdivide land abutting a State highway or a class 1 town highway
  can be recorded unless all the abutting lots so created are in accord with the standards
  of this section, including the requirement to provide a frontage road or roads. (l) Recording of permits; recording fees. Initial and subsequent permits shall be recorded at the expense of the applicant in
  the land records of any municipality in which the affected property is located, unless
  the Agency (in the case of State highways) or the legislative body (in the case of
  town highways) determines that such action is not warranted in specific instances
  or for certain categories of permits. The Agency or the legislative body may include,
  as a condition of the permit, that the issued permit shall not be valid until the
  permit holder records in the office of the appropriate municipal clerk the “notice
  of permit action” provided with the issued permit by the Agency or the legislative
  body. (Added 1985, No. 269 (Adj. Sess.), § 1; amended 1989, No. 79; 1989, No. 246 (Adj. Sess.), §§ 13-15; 1997, No. 62, § 56, eff. June 26, 1997; 1997, No. 120 (Adj. Sess.), § 8a; 1997, No. 150 (Adj. Sess.), § 13; 1999, No. 156 (Adj. Sess.), § 13, eff. May 29, 2000; 2003, No. 56, § 55, eff. June 4, 2003; 2009, No. 132 (Adj. Sess.), § 10, eff. May 29, 2010; 2013, No. 145 (Adj. Sess.), § 3; 2017, No. 38, § 18; 2019, No. 14, § 61, eff. April 30, 2019; 2021, No. 20, §§ 103, 104; 2021, No. 105 (Adj. Sess.), § 363, eff. July 1, 2022.)